The Intersection of Constitutional Law and Civil Procedure: Review of Wholesale Justice—Constitutional Democracy and the Problem of the Class Action Lawsuit (Part II)

In the first portion
of this Essay, I reviewed Professor Martin Redish's theory that the application
of Federal Rule of Civil Procedure 23 in modern class action practice is
unconstitutional.[1]Professor Redish argues that modern class
action procedures violate absent class members' due process rights by sweeping
large numbers of individual plaintiffs into litigation without their explicit
consent.I then set forth Professor
Redish's proposals for reform, including increased scrutiny of class actions to
weed out "faux" class actions that benefit lawyers but not class members,
abandonment of the opt–out procedure under Rule 23 in favor of an opt–in
procedure that would require absent class members to take some affirmative
action before being swept into a class action, and prohibition of settlement
classes, which Professor Redish believes are often subject to abuse.The second portion of this Essay explores
further implications and applications of Professor Redish's theories.

I. Potential Additional Implications Of Professor Redish's
Analysis

The reforms Professor
Redish proposes would not only further protect the due process and other
constitutional rights that he identifies, but also would likely have a
beneficial effect on modern class action practice from a policy
standpoint.The "misuses" of Rule 23 he
identifies that tend to lead to constitutional violations at the same time lead
to the sorts of undesirable practical consequences that other commentators have
identified.Nonetheless, there may be
ways in which Professor Redish's analysis could be extended even further.Already, there are various aspects of class
action practice that may serve to limit the use and abuse of the class action
device.Importing the concepts of due
process Professor Redish identifies into these areas may further bolster the
effectiveness of class action procedures.Although the proposals discussed below—such as consideration of due
process concerns as a factor in the certification decision, early resolution of
the class certification question, liberal appellate review, and more extensive
use of notice procedures—are less sweeping than the reforms Professor Redish
proposes, they may be more feasible.Moreover, the concerns Professor Redish identifies may, to some extent,
explain the limitations courts already impose in restricting application of the
class action device.While such concerns
may not always be explicit, they may be implicit, or may provide an additional
unexplored ground for the limitations imposed to date.

Certainly such a mode
of analysis would not be unprecedented.The Supreme Court has long recognized that statutes and rules should be
construed in a manner that avoids potential constitutional problems.[2]Thus, for example, the Court has observed
that "where a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the other of which
such questions are avoided, our duty is to adopt the latter."[3]This doctrine of constitutional avoidance
does not apply solely where an asserted constitutional question indisputably
has merit, but rather is intended to "allow[] courts to avoid the decision of constitutional questions."[4]Accordingly, the doctrine applies where one
interpretation of a statute or rule "engenders constitutional issues" while "a
reasonable alternative interpretation" avoids those constitutional questions.[5]Indeed, the Supreme Court has often applied
the avoidance canon in situations where it later rejected the alleged
constitutional deficiency.[6]

Nor are the specific
constitutional concerns Professor Redish identifies entirely foreign to the
federal courts in the context of Rule 23.In this regard, Professor Redish's contention that "at no point has the
Supreme Court, in either its due process or class action jurisprudence, . . . fully
acknowledged the existence of the litigant autonomy interest" may be something
of an overstatement.[7]As Professor Redish himself observes, in Ortiz v. Fibreboard Corp.,
the Supreme Court specifically noted the due process interest in individual
autonomy in constraining the use of the Rule 23(b)(1)(B) mandatory class action
device.[8]There, the Court observed that "the Rules
Enabling Act and the general doctrine of constitutional avoidance would jointly
sound a warning of the serious constitutional concerns that come with any
attempt to aggregate individual tort claims on a limited fund rationale."[9]In doing so, it specifically noted the due
process concerns inherent in binding absent class members:

[M]andatory
class actions aggregating damages claims implicate the due process "principle
of general application in Anglo–American jurisprudence that one is not bound by
a judgment in personam in a
litigation in which he is not designated as a party or to which he has not been
made a party by service of process," Hansberry v. Lee, 311 U.S. 32, 40
(1940), it being "our ‘deep–rooted historic tradition that everyone should have
his own day in court.'"[10]

In addition, the Court
observed that these concerns were further magnified "in settlement–only class
actions" where "the procedural protections built into the Rule to protect the
rights of absent class members during litigation are never invoked in an
adversarial setting."[11]

A similar recognition
of the important constitutional concerns raised by the application of Rule 23
may be applied to other aspects of class action procedure.Such a mode of analysis would have the
beneficial effect of constraining Rule 23 so that it more closely adheres to
constitutional requirements without necessitating formal amendment of the rule
or some form of official congressional action.Indeed, many of the recent decisions constraining the use of the class
action device may be viewed as implicitly recognizing such concerns—perhaps not
as constitutional dictates, but at a minimum, as prudential concerns that
deserve consideration in applying the Federal Rules of Civil Procedure.

A. The
Applicable Standard for Class Certification: Rigorous Scrutiny

Such an analysis may
be incorporated as part of the standard applied in determining whether to
certify a class.Recognizing the
potential practical pitfalls of a certification decision (if not the
significant constitutional concerns), the Supreme Court has made clear that
courts should undertake a "rigorous analysis" under Rule 23 before a class
action is certified.[12]As part of this analysis, courts could easily
incorporate an inquiry into the effects of class certification on absent class
members' due process rights and whether application of the class action device
in the particular case would implicate a change in substantive law.

Indeed, the Supreme
Court in Ortiz seemed to be inviting such an analysis in specifically
interpreting Rule 23(b)(1)(B) with an eye toward its broader constitutional
implications.[13]The Court cautioned against the "adventurous"
use of the class action device for precisely this reason, specifically invoking
the doctrine of constitutional avoidance as a canon of construction applicable
to Rule 23.[14]While Ortiz
addressed the mandatory class action, there was no language in the opinion
limiting its analysis to a particular category of class action case, and indeed
its analysis would seem to be one of general applicability.

B. Early
Resolution of Class Certification Questions

The constitutional
concerns that Professor Redish raises could also be considered in determining
the appropriate timing of the class certification decision.The fundamental nature of the rights involved
counsel in favor of an early resolution of the class certification question.Already, Rule 23(c)(1)(A) directs that a
decision on class certification should occur "[a]t an early practicable time
after a person sues or is sued as a class representative."[15]Local federal rules give context to this
command; in certain instances, these rules require that a motion seeking class
certification be filed within a specified number of days after a class action
complaint.[16]

The constitutional
concerns that Professor Redish identifies further support early determination
of class certification.To the extent a
lawsuit threatens to drag in parties who did not file the litigation, a
determination that impacts such parties' due process rights to avoid inclusion
in the litigation should be resolved early in the proceedings.Such principles may be invoked to prevent
attempts to draw out or postpone the class certification decision.Likewise, they may support a party's efforts
to have class certification decided early in the proceedings without discovery,
via a motion to strike or dismiss the class allegations.[17]Again, Rule 23(d)(1)(D) specifically
authorizes such procedures by directing that courts may "require that the
pleadings be amended to eliminate allegations about representation of absent
persons."[18]Courts also have an independent obligation to
determine whether a class is properly certified and may do so sua sponte.[19]

C. Immediate
Appellate Review

Constitutional
concerns may also play a role in determining the timing of appellate review of
a class certification decision.Under
Rule 23(f), a federal appellate court has discretion to accept an immediate
appeal of a decision on class certification.[20]However, even before this provision was enacted, courts had accepted
interlocutory appeals of class certification decisions under 28 U.S.C.
§ 1292(b) or reviewed such decisions by way of a writ of mandamus,
recognizing that such decisions could have significant implications for the
litigation.[21]Rule 23(f) liberalized the review of such
orders by dispensing with the requirement that the district court certify the
order for interlocutory review under § 1292(b) or that the party seeking review
meet the more stringent requirements necessary to obtain a writ of mandamus.

Among the factors that
appellate courts consider in determining whether to grant interlocutory appeal
of a certification decision are (1) whether the order presents the "death knell"
of litigation for plaintiffs or defendants; (2) whether it shows a "substantial
weakness, amounting to an abuse of discretion"; and (3) whether interlocutory
appeal is necessary to "resolve an unsettled legal issue that is central to the
case and intrinsically important to other cases but is otherwise likely to
escape review" absent an immediate appeal.[22]However, this analysis could well incorporate the danger that certification
poses to fundamental rights.Does the
certification decision threaten to undermine the due process rights of absent
class members or effect an improper change in substantive law?If so, immediate review is arguably warranted
to avert such constitutional violations.

D. The
Right to Object

Finally, the ability
of individuals to object to class certification where the defendants and the
named plaintiffs have jointly sought such a result provides an important
safeguard and potential guarantor of constitutional rights.[23]As Professor Redish himself acknowledges,
it is unlikely that settlement classes will be completely abolished.Nonetheless, objectors may make many of the
arguments Professor Redish outlines in opposition to certification of
particular classes.They may argue, for
example, that class members do not stand to benefit, while the lawyers may
receive significant fees or that a class settlement should be disallowed.[24]Indeed, the objectors in Ortiz raised
many of the same constitutional concerns Professor Redish identifies.While the Court did not articulate a per
se rule against settlement classes or mandatory class actions, it did take
such concerns into account in holding that class certification was
inappropriate under the particular circumstances before it and cautioning that
the class action device should not be used in an "adventurous" manner.[25]

One might argue that
the objector mechanism functions imperfectly where the value of each individual
claim is small and there is little incentive for absent class members to object.[26]Moreover, there may be ways to bolster the
objector mechanism as a means of safeguarding constitutional rights.Where no objectors come forward, the court
could appoint a neutral representative to analyze whether class treatment is
appropriate.[27]Likewise, public interest litigators may file
objections to certification in cases where they believe that constitutional
rights are in danger.[28]In any event, the possibility of objection to
proposed class certification decisions represents a potential mechanism by
which the constitutional concerns Professor Redish raises may be vindicated¾at
least to some extent.

E. More
Liberal Use of Notice Procedures

Another potential way
in which these constitutional concerns may come into play is in the
consideration of what types of notice must be given to absent class
members.Under Rule 23, notice is
required under certain specified circumstances, including to inform absent
class members that they have the ability to opt–out of a Rule 23(b)(3) class or
that the court has been asked to approve a class settlement.[29]Even beyond the required notice provisions,
however, the rules authorize federal courts to require the parties to provide
absent class members notice in other circumstances.Thus, for example, Rule 23(d)(1)(B)
authorizes the court to require notice "to protect class members and fairly
conduct . . . any step in the action; the proposed extent of the judgment; or
the members' opportunity to signify whether they consider the representation
fair and adequate, to intervene and present claims or defenses, or to otherwise
to come into the action."[30]

In determining whether
additional notice is appropriate, courts could take constitutional concerns
into consideration.[31]Courts might require the parties to
communicate information to absent class members, such as the likelihood that
they will actually receive compensation through a class action lawsuit or the steps
being taken in the litigation.Likewise,
they may require that class members be notified of their right and ability to
actively participate in their own defense or object to the conduct of the
action.While this additional notice is
not without cost, technological innovations have helped reduce such expenses.[32]

F. Limitations
of the Class Action Device in Certain Contexts Such as Mass Torts

There are other areas
in which the class action device has been expressly limited and in which such
constitutional concerns may be either implied or, at a minimum, may provide an
alternative rationale for an existing judicial trend.For example, after the Supreme Court's
decisions in Amchem and Ortiz it has become exceedingly difficult
to certify a class in the context of a mass tort.[33]Indeed, even before these decisions, courts
had recognized that there was a "national trend to deny class certification in
drug or medical product liability/personal injury cases."[34]This resistance to certification in such
cases can be traced to the 1966 amendments to Rule 23, which specifically noted
that the class action device was "ordinarily not appropriate" in a "mass
accident" case where there would be "significant questions . . . affecting the
individuals in different ways."[35]

On their face, these
decisions are based on the Rule 23 requirements.[36]There are myriad individual factual and legal
differences among individual claims in such cases that generally make class
certification inappropriate.[37]Such individual differences make it
impossible to demonstrate the typicality or adequacy necessary for
certification under Rule 23(a).Likewise,
they make it difficult to demonstrate that a class has the requisite "cohesiveness"
for certification under Rule 23(b)(2) or that common issues "predominate" as
required under Rule 23(b).[38]

Nonetheless, the more
fundamental constitutional principles Professor Redish articulates may provide
an alternative ground for such decisions.While under a literal interpretation of Rule 23 the type of case should
be irrelevant for purposes of the constitutional analysis, as a practical
matter, the autonomy concerns in a case involving personal injuries may be even
more acute.[39]In mass tort cases, absent class members may
have a particularly acute interest in personally determining whether to file
litigation in the first instance and the course the litigation takes.This autonomy interest may be demonstrated in
the fierce opposition generated by the nationwide asbestos settlement classes
proposed in Amchem and Ortiz.[40]There, the concerns of individual litigants
were so great that they pursued their objections all the way to the Supreme
Court on multiple occasions.While the
need for alternative grounds for objecting to certification under such
circumstances may not be great, the intensity of the individual autonomy
interest may be an alternative explanation for fierce opposition to these
settlements and the courts' rulings rejecting them.

G. Limitations
on Nationwide Class Actions

Another area in which
implicit constitutional concerns may have some explanatory power is in the
courts' treatment of purported nationwide class actions.Again, the difficulty in obtaining
certification of such classes has been significant, and, again, such difficulty
implicitly may be due in part to the extent to which they threaten fundamental
constitutional interests.[41]As in the case of mass tort class actions,
the courts have focused on individual differences among the claims of absent
class members in denying certification of nationwide classes.In the context of a nationwide class action
where different states' laws may apply to individual claims, the problem regarding
the unique nature of each claim becomes even more significant.As one federal court has observed, "[n]o
class action is proper unless all litigants are governed by the same legal
rules."[42]In a nationwide class action, however, this
is exceedingly difficult, if not impossible.

Once again, the
constitutional concerns Professor Redish raises may provide an alternative
explanation or potential alternative ground for reaching the same result.While in theory it should not matter whether
the due process rights of one or one thousand individuals are implicated when assessing
the constitutionality of class actions, in practice the constitutional concerns
regarding abridgement of individual autonomy become much greater as the size of
the class expands and individual differences among the claimants
proliferate.Under such circumstances,
named class representatives cannot possibly be said to "represent" the
interests of absent class members or serve as a safeguard in the face of a
potential denial of fundamental constitutional rights.Accordingly, the tendency of courts to deny
class certification in the context of a nationwide class action may be explicable
in part by the potential threat such actions pose to fundamental constitutional
rights.At a minimum, such concerns
provide an additional basis to question the application—or narrowly construe
the application—of Rule 23 to such cases.

H. Scrutiny
of Class Definition

Finally, the due
process concerns Professor Redish raises may potentially explain the emphasis
many courts have given to the issue of class definition.Typically, a proposed class cannot be
certified unless it is adequately defined and clearly ascertainable under
objective criteria.[43]Courts have observed that an adequate class
definition is "crucial" because "the outcome of a class action suit is res
judicata as to all unnamed class members."[44]Where a plaintiff fails to present a workable
class definition, the class allegations are properly stricken or dismissed as a
matter of law.[45]

The requirement of an
objectively defined class that makes determination of class membership feasible
is often raised in precisely the sorts of cases that present acute due process
concerns.Thus, for example, "[s]everal
decisions denying class certification in pharmaceutical products liability and
medical monitoring cases have found that class membership is not feasibly
ascertainable where it hinges on myriad medical factors individual to each
class member."[46]

It is precisely this
sort of case in which the constitutional concerns Professor Redish raises may
be particularly significant, given that where it is impossible to define who
exactly will be bound by a class determination, there are obvious concerns
regarding due process.Absent class
members will not be able to determine whether they must assert their right to
opt out of a proposed class where the class definition is vague.Accordingly, they may be held to have
effectively waived any due process right not only merely through inaction, but
where their objection to inclusion is rendered effectively impossible due to a
vague class definition.

Conclusion

Wholesale Justice
is a signally important work, one that has important consequences for
policymakers, the judiciary, practitioners, and indeed the public at
large.By articulating the important
constitutional concerns inherent in the class action procedure as applied in
current practice, Professor Redish provides a valuable basis for needed
reforms.His contribution demonstrates
that such reforms are needed not merely to curtail abuses that have negative
policy implications, but also to protect fundamental rights that to date have
largely been ignored.

————

*. Partner,
Kirkland & Ellis LLP; Senior Lecturer in
Residence, LoyolaUniversityChicagoSchool of Law.J.D., Northwestern University School of Law;
M.B.A., The University of Chicago; B.S./B.A., State University of New York at
Buffalo.The views expressed in this Article
are solely those of the author and do not necessarily represent those of
Kirkland & Ellis LLP or its clients.

7. Martin Redish, Wholesale Justice:
Constitutional Democracy and the Problem of the Class Action Lawsuit 136
(2009) (link).
The constitutional concerns regarding individual autonomy are also recognized,
albeit to a limited extent, in the American Law Institute's draft Principles
of the Law of Aggregate Litigation.See
A.L.I., Principles of the Law of
Aggregate Litigation: Proposed Final Draft § 2.07 cmt. b, at 144
(Apr. 1, 2009) ("Constitutional due process . . . underlies the need to protect
the interests of participants in aggregate proceedings."); id. cmt. e,
at 149–50 ("[A]n individual's ability to control the manner of adjudicating
that individual's claim is important and should not lightly be curtailed. . . .
Considerations of constitutional due
process may call for an opportunity to exit, but, nonetheless, leave open the
precise mechanics of that opportunity."); id. cmt. f, at 152 ("The opportunity
to appear in the aggregate proceeding stands as an application of the general
principle that individuals must have an opportunity to be heard in proceedings
that stand to alter their rights, a principle well established in the
due–process treatment of administrative proceedings, for example.").

8. See
Redish,supra note 7, at 158–59 (citing Ortiz v. Fibreboard Corp., 527
U.S. 815 (1999)) (link).The Supreme Court's recognition of the due
process concern goes back at least to Hansberry v. Lee, 311 U.S. 32
(1940) (holding that landowners who were not parties to prior litigation could
not be bound by the decision) (link).See also Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 811–12 (1985) ("minimal procedural due process protection"
includes "notice plus an opportunity to be heard and participate in the
litigation" as well as "an opportunity to remove himself from the class") (link).

10. Id. at 846
(citation omitted). As the Court observed, "both the Rules Enabling Act and the
policy of avoiding serious constitutional issues counsel against leniency in
recognizing mandatory limited fund actions in circumstances markedly different
from the traditional paradigm."Id. at 864.See also id. at 847 ("The legal rights
of absent class members (which in a class like this one would include claimants
who by definition may be unidentifiable when the class is certified) are
resolved regardless of either their consent, or, in a class with objectors,
their express wish to the contrary.") (link).

16. Local
Rule 23.1(c) of the Northern District of Ohio is representative:

[T]he party or
parties asserting a class action shall, within ninety (90) days after the
filing of a pleading asserting the existence of a class or within such other
period of time mandated by controlling statute, move for a determination under
Fed R. Civ. P. 23(c)(1), whether the action is to be maintained and, if so, the
membership of the class.

23. Cf.
id. § 21.643, at 326 ("Objectors
can play a useful role in the court's evaluation of the proposed settlement
terms.") (link).

24. See
id. (noting that "an organization's objection in one case transformed a
settlement from one in which the lawyers received a majority of the funds to
one that primarily benefited class members" (citation omitted)) (link).

26. See Manual, supra note 20,
§ 21.643, at 326 ("An
objector who wins changes in the settlement that benefit the class may be
entitled to attorney fees, either under a fee–shifting statute or under the ‘common–fund'
theory.") (link).

27. See
id. § 21.644, at 329 (discussing the role of magistrate judges,
special masters, and other judicial adjuncts) (link).

28. See
Center for Class Action Fairness,
http://centerforclassactionfairness.blogspot.com/ (last visited Mar. 25, 2010)
(discussing the work of the Center for Class Action Fairness, a public interest
law firm that files objections to class action settlements) (link).

31. As
the Manual for Complex Litigation observes, there are also prudential
reasons for requiring expansive notice.Notice "provides the structural assurance of fairness that permits
representative parties to bind absent class members . . . [as well as] an
opportunity for class members to participate in the litigation, to monitor the
performance of class representatives and class counsel, and to ensure that the
predictions of adequate representation made at the time of certification are
fulfilled."Manual,supra note 20,
§ 21.31, at 285 (link).

32. See
A.L.I., supra note 7,
§ 1.05 cmt. i, at 57 ("Technological advances have made it easier and less
expensive for lawyers to communicate with clients and class members.Many lawyers now regard communicating by
e–mail and via websites as standard practice techniques.").

33. See
Manual, supra note 20,
§ 22.7, at 413–14 ("After
experimentation with class treatment of some mass torts during the 1980s and
1990s, the courts have greatly restricted its use in mass torts litigation.") (link);
Richard A. Nagareda, Mass Torts in a
World of Settlement 72 (2007) ("As embodied in Rule 23 of the Federal
Rules of Civil Procedure in 1966, the modern class action seemed on its face a
device with little applicability to mass torts.") (link).

The American Law
Institute's draft Principles of the Law of Aggregate Litigation
summarizes the state of the law: "As a doctrinal matter, the class action has
fallen into disfavor as a means of resolving mass–tort claims.This development reflects many factors,
including concerns about the quality of the representation received by members
of settlement classes, difficulties presented by choice–of–law problems, and
the need for individual evidence of exposure, injury, and damages." (citation
omitted).A.L.I., supra note 7,
§ 1.02, notes to cmt. b(1)(B), at 26.

37. See,
e.g.,Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 624 (1997) (quoting the lower court's
observation that "[c]lass members were exposed to different asbestos–containing
products, for different amounts of time, in different ways, and over different
periods," that "[s]ome class members suffer no physical injury or have only
asymptomatic pleural changes, while other suffer from lung cancer, disabling
asbestosis, or from mesothelioma," and that "[d]ifferences in state law . . . compound
these disparities") (link); In re
Am. Med. Sys., Inc., 75 F.3d at 1081 (denying class certification because "[p]roofs
as to strict liability, negligence, failure to warn, breach of express and
implied warranties will . . . vary from plaintiff to plaintiff") (link).

39. This
concern has long been recognized.See,
e.g., Georgine v. Amchem
Prods., Inc., 83 F.3d 610, 633 (3d Cir. 1996) (observing in asbestos context
that "[e]ach plaintiff has a significant interest in individually controlling
the prosecution of separate actions" and that "[p]laintiffs have a substantial
stake in making individual decisions on whether and when to settle") (link);Yandle v. PPG Indus., Inc., 65 F.R.D. 566, 572 (E.D. Tex. 1974) (finding
that "members of the purported class have a vital interest in controlling their
own litigation because it involves serious personal injuries and death in some
cases," citing Hobbs v. Northeast Airlines, Inc., 50 F.R.D. 76 (E.D. Pa.
1970)); see also Nagareda,supra
note 32, at 233 (noting the "commitment to individual autonomy" that is "a
central feature of the present, litigation–based view of mass torts") (link).

40. See
Amchem Prods., Inc., 521 U.S.
at 607 (1997) (observing that "[s]trenuous objections had been asserted
regarding the adequacy of representation") (link).

41. See,
e.g.,Castano v. Am.
Tobacco Co., 84 F.3d 734, 742 n.15 (5th Cir. 1996)(observing that it is
"difficult to fathom how common issues could predominate" in a nationwide class
"when variations in state law are thoroughly considered") (link);
In re American Med. Sys., Inc.,75 F.3d at 1085 ("If more than a few of the
laws of the fifty states differ, the district judge would face an impossible
task of instructing a jury on the relevant law, yet another reason why class
certification would not be the appropriate course of action." (citation omitted))
(link);
James E. Pfander, The Tidewater Problem: Article III and Constitutional
Change, 79 Notre Dame L. Rev.
1925, 1975 (2004) ("In the class action context . . . diversity preserves the
conflicting bodies of state law that make the certification of nationwide class
actions virtually impossible today in federal court.").

43. See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir.
1977) (reviewing the requirements for class certification) (link);
Clay v. Am. Tobacco Co., 188 F.R.D. 483, 490 (S.D. Ill. 1999) (rejecting class
definition that included "all persons in the United States who, as children,
purchased and smoked cigarettes" sold by defendants, noting that "[t]he actual
number of potential class members is enormous and, more importantly, amorphous"
and that "[a]t no time during this case would the exact membership of this
class be ascertainable"); Manual,
supra note 20,
§ 21.222, at 270 ("Defining
the class is of critical importance because it identifies the persons (1)
entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule
23(c)(2) to the ‘best notice practicable' in a Rule 23(b)(3) action.") (link).